Girlfriend’s evidence can be « corroborative » under OPCF 44R

3 mai 2011

( Disponible en anglais seulement )

The Ontario Court of Appeal released a decision today discussing the meaning of “other material evidence” and “independent witness evidence” under the OPCF 44R (Family Protection Endorsement).

In Pepe v. State Farm, Massimo Pepe was injured in a single-car accident.  Shirley Aguirre, his girlfriend at the time, was in the car and was also injured.  Pepe claimed that the accident occurred when he swerved to avoid an oncoming vehicle that had crossed into his lane.  Pepe’s vehicle left the road and struck a tree.  According to him, the other vehicle did not stop. Aguirre apparently corroborated Pepe’s evidence of how the accident happened.

As a result of the accident, Pepe sued his own insurer (State Farm), claiming coverage for his injuries caused by the negligence of the unidentified driver.  State Farm denied that the accident was caused by the negligence of anyone other than Pepe.  State Farm further alleged that the coverage under OPCF 44R was not available to Mr. Pepe as Ms. Aguirre’s evidence could not fulfill the corroboration requirement under section 1.5 of the OPCF 44R. That section states:

1.5(c)  where an eligible claimant alleges that both the owner and driver of an automobile referred to in clause 1.5(b) cannot be determined, the eligible claimant’s own evidence of the involvement of such automobile must be corroborated by other material evidence; and

(d) “other material evidence” for the purposes of this section means

(i) independent witness evidence, other than evidence of a spouse…or a dependent relative…; or … [emphasis added]

Of note, Aguirre also claimed that the accident happened as a result of an unidentified driver and claimed damages against State Farm under section 265 of the Insurance Act (basic unidentified driver coverage).

Both Pepe and State Farm brought motions under Rule 21.01(1) for a determination of whether Aguirre’s evidence could meet the corroboration requirement in OPCF 44R.  The motion judge ruled in Mr. Pepe’s favour holding that Ms. Aguirre’s evidence could corroborate Mr. Pepe’s claim for the purposes of the OPCF 44R coverage.  State Farm appealed from that determination.

The Court of Appeal unanimously affirmed the order below and dismissed the appeal.

The Court of Appeal found that the categories of excluded “independent witnesses” under section 1.5(d)(i) are limited to spouses and dependent relatives.  On the language of the section, a witness who is a spouse or a dependent relative cannot provide corroboration of the claimant’s assertion that the accident was caused by an unidentified driver, no matter how credible the evidence of the spouse or dependent relative might be.

Further, the Court of Appeal held that nothing in the language of the section could justify extending the very limited and well-defined categories of persons who cannot give corroboration to the much broader and less defined group of persons having a close personal relationship with the claimant.  Not only is there nothing in the language supporting the appellant’s position, an interpretation that precluded anyone with a close personal relationship from providing corroboration would, given the nature of the coverage in OPCF 44R, significantly diminish the circumstances in which that coverage would be available.

The Court of Appeal also found that there was no doubt that under the common law requirements or those applicable under Ontario’s Evidence Act, Aguirre’s evidence was capable of corroborating Pepe’s evidence. Therefore, the Court found that since her evidence was corroborative, Pepe’s claim for coverage under OPCF 44R could proceed.  However, the Court noted that it did not mean that Pepe’s claims would necessarily succeed.  At trial, the trial judge would have to decide whether Aguirre’s evidence actually corroborates Mr. Pepe’s evidence that the accident was caused by an unidentified driver.  In making that determination, the trial judge would have to assess her credibility.  Her financial stake in the outcome and her personal relationship may figure in that assessment.  If in the context of the entire evidence the trial judge disbelieves Ms. Aguirre, her evidence cannot corroborate Mr. Pepe’s version of the accident and his claim under OPCF 44R would fail.

Read the Court of Appeal’s decision.

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